Drone Memo Q&A

Law professor Michael Lewis explains what the controversial “drone memo” means to Americans.

Professor Michael Lewis

Last week, a U.S. Department of Justice memo, or “white paper,” was leaked to NBC News that appeared to corroborate the widely held belief that the United States is currently employing a targeted killing program against Al-Qa’ida that includes American citizens amongst its targets. The memo, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational leader of Al-Qa’ida or An Associated Force,” is available online. We asked Michael Lewis, ONU professor of international law and the law of war, to explain why this memo, increasingly referred to as the “Drone Memo,” became such a big story.

Q: What is this memo about? What does it actually say?

First, we need to understand what the white paper is and is not. Many news organizations have described it as establishing the legal requirements for targeting American citizens abroad that play an operational role in Al-Qa’ida. However, in the paper’s second sentence, it makes it clear that it is not performing this function. “This paper does not attempt to determine the minimum requirements necessary” to carry out such operations. Rather, it describes a set of circumstances that are generally descriptive of Anwar al-Awlaki (the one American citizen we know who has been targeted and killed by this program) as being sufficient to justify the use of lethal force. This is a policy memo describing some of the process that the executive branch has put in place to operate this program. The underlying legal requirements are contained in another classified document that the Obama Administration recently released to the House and Senate Intelligence Committees as part of John Brennan’s confirmation process.

The memo is a very clear admission that the United States is currently implementing a targeted killing program and that U.S. citizens are among its targets. But the pertinent element of this memo and the policy it supports is that the United States reserves the right to target and kill only American citizens who are operational members of Al-Qa’ida or affiliated forces outside of the United States in situations where capture is not feasible.

Q: Where is the controversy coming from?

I think this memo is controversial for two very different reasons. The first is the reaction of the international legal community. Questions have been raised as to whether such a targeted killing program violates international law. Because this memo definitively describes the outlines of such a program, the international law community has had a lot to say about it, although at some level I am a bit surprised by this. I say that because there have been four or five policy speeches made over the past couple years by people like U.S. Attorney General Eric Holder and Deputy National Security Advisor for Homeland Security and Counterterrorism John Brennan discussing the legality of our nation’s policy. Those speeches were carefully read and analyzed by the international legal community, and there really is nothing new here, so I am a little surprised that this memo has received as much attention as it has.

The other part is the popular reaction the memo has received from the media. That reaction seems to focus heavily on drones, which is interesting because the word “drone” does not appear anywhere in the memo. In some media reports, the drone narrative has expanded to ridiculous levels with allusions to Skynet from the Terminator movies.

Q: If the word “drone” doesn’t appear in the memo, how did it get to be part of the story?

Because the memo is describing a policy and a program that has used drone strikes in its only known implementations, most famously the killing of American citizen Anwar al-Awlaki in Yemen last year. As mentioned above, his case is consistent with the white paper. He was an American citizen; he was an operational member of Al-Qa’ida who gave advice to the Ft. Hood shooter Nidal Malik Hasan, and advised the underwear bomber Umar Farouk Abdulmutallab where to detonate himself to cause the most civilian casualties; and he was in Yemen where the government was unable or unwilling to capture him. He was killed with a drone strike in adherence to this policy.

But the emphasis on drones is missing the point. The memo does make one reference to “pilotless aircraft,” but the method of killing is not at all the point of this memo. And, in fact, the memo points out that the military could use any means at its disposal to accomplish the goal. The memo does not differentiate between a drone strike and a special-forces sniper pulling the trigger.

Q: So, all of the talk about drones attacking citizens in the United States is completely unfounded?

Completely. The drone thing is something that makes everyone uncomfortable I think, because drones are the least understood things out there. There is a sense of machines killing men. And, there is a sense that machines are getting to decide to kill men, which right now they don’t. Every single drone strike happens because a human being presses a button, not because a computer checks off a list of criteria and decides to fire a weapon. The autonomous drone doesn’t exist right now. To be fair, there are autonomous weapons systems that are being developed in various forms, but there is very little appetite in the military to turn over weapons-employment decisions to computers. And, if that were to ever become the case, it would require a complete rewriting of the laws of war.

But I think what really bothers people is the sense of this machine vs. man and that this Brave-New-World technology is pervasive and all-consuming. People think that drones are going to fly over their houses to spy on them. I get asked about it all the time. And the answer to that is very simple: A drone is just another way of carrying sensors, and the Supreme Court has been very clear as to what sensors are okay and what aren’t. There are legal limitations to evidence collection that do not change just because there is a different vehicle carrying the sensor. So, whether it’s a van parked in front of your house, a camera on the street, a helicopter hovering over your back yard or a drone overflying your house, the determination of what can legally be collected by the government is based upon the sensors deployed, not on the device that is carrying them. In that regard, there is nothing new about drones.

Q: Will this memo provide justification for our enemies to use drones against us?

That is something else that has been floated out there: this narrative of fear in which people are asking whether we are inviting this kind of action against us if we do it to them. There are many practical reasons as to why that is an irrational fear, the foremost being that drones are the antithesis of a terrorist weapon. Any drone that would be suitable for a mass casualty attack would need to be a large enough to carry a significant payload, like a Predator, for instance. Those drones are highly technical, they are expensive, they require sophisticated communications networks to control them, maintenance support, and they require a certain degree of infrastructure (i.e. a runway). Part of what makes terrorism so dangerous is the often-improvisational nature of its weapons and tactics — a roadside bomb, a suicide vest, a truck full of fertilizer. Even countries with the resources to launch a drone strike would find it a waste of time and money. They have other ways they can attack us that would be much more cost-effective and much more likely to cause harm to civilians.

Q: What does this memo ultimately mean to Americans?

If you are in this country it doesn’t mean anything. If you are outside of this country and shout, “I hate America,” it still doesn’t mean anything. If you are outside of this country and you give money to Al-Qa’ida, even that doesn’t mean anything. This memo and the policy it supports only means something to you if you are an operational member of Al-Qa’ida, or an associated force, residing outside of the United States in a country where we lack a military presence or alliance with the acting government to allow us to capture you. That’s really it.

But what this memo does mean to all Americans is that our government has admitted to actively engaging in a targeted killing program that applies to American citizens. We now know for a fact that that is going on. So, the question for us as individuals and as a nation becomes this: “Is such a policy moral, ethical and legal, and under what circumstances (if at all) do we want it to continue?”

Professor Lewis has published more than a dozen articles and essays on various aspects of the law of war and the conflict between the US and Al-Qa'ida. He has testified before Congress on the legality of drone strikes in Pakistan and Yemen and on the civil liberties tradeoffs associated with trying some Al-Qa'ida members or terrorist suspects before military commissions. His op-eds have appeared in numerous media outlets including the Los Angeles Times and the New York Post and he has appeared on Public Radio International to discuss the increasing use of armed drones in warfare.